Despite the judgement, the CSC still regards invalidity benefits as “a form of superannuation payable as income support for the pensioner for the extent to which the person has been incapacitated for civilian employment by their ADF service.”

Justice Kent ruled that the CSC’s argument was incorrect and that the benefit was insurance and therefore not “splittable”.

The judgement has been ignored by the CSC, but supported by the legal fraternity who say it could have major consequences for veterans receiving invalidity payments and their ex-spouses.

The CSC refused to comment on the matter, but in correspondence obtained by News Corp it attacked the judgement.

“The Judgement in the Family Court proceedings did not expressly address any of the relevant statutory provisions within the complex framework governing family law superannuation splitting and should not be regarded as a conclusive determination of this issue,” it said in a letter to the Commonwealth Information Commissioner.

Court win ... A judge has ruled that invalidity payments are immune from divorce settlements.Source:ThinkStock

Principal lawyer with Slater and Gordon, Annemarie Gambera, said that invalidity benefits under the MSBS were clearly not deemed “superannuation interests” under Family Law.

“Noting that the pension was not in fact a superannuation entitlement/interest, it is impossible to split it under superannuation splitting,” she said.

“This is consistent with the purpose of these benefits as expressed in the Cole Report.”

That 1990 report said the payment would “provide insurance against invalidity and death with the amount of benefit payable providing compensation for the retirement benefit foregone because of premature termination of service.”

The veteran who cannot be identified said it appeared that he was the only person to have audited information provided by the CSC.

“It didn’t sit right with me on principal,” the eight-year army veteran said.

He was medically discharged with serious back injuries and receives a Totally and Permanently Incapacitated (TPI) pension and is unable to work.

“I urge veterans to get into the Family Court and to not take what the CSC or its expert witnesses say as gospel. Invalidity payments are insurance not superannuation and because they are not defined benefits they are not splittable.”

He said he could see why the CSC was reluctant to admit its error because there could be thousands of cases like his and hundreds of millions of dollars at stake.

Scathing ... A veteran has urged others not to take the CSC’s claims as gospel. Picture: Darren England.Source:News Corp Australia

“It took two years of arguing against nine different lawyers and three barristers in two federal courts in front of two registrars and three judges to get the message across,” he said.

“Although I won I still find it a national embarrassment that people who have fought for their country have to go through this due to incorrect information provided by their Super fund.”

CASE STUDY

A veteran who became a paraplegic following two parachuting accidents while serving with the army’s 3rd (parachute) Battalion has vowed to fight to save his invalidity pension.

The former soldier, who cannot be identified, was medically discharged in 1995 and fought for two years for a TPI pension.

He has been in court battling his ex-wife who is seeking to ‘split’ his invalidity payment by seeking half of the $1200-a-fortnight ‘insurance’ benefit.

“Many veterans are sick and just hand over the money after being bullied by lawyers,” he said.

“I can think clearly and will fight this to my last breath.”

The veteran, who has competed in wheelchair triathlon championships, said he would always look after his dependent children, but he would not hand over the invalidity payment he received for serving his country.